These two appeals arise out of the order dated 16th
June, 1997 passed by the National Consumer Disputes
Redressal Commission, New Delhi (hereinafter referred to as
'the Commission') in Original Petition No. 292 of 1994. The
Hospital is the appellant in Civil Appeal No. 7708 of 1997
while the insurance company is the appellant in the other
appeal. When the special leave applications out of which the
two aforesaid appeals arise were listed for preliminary
hearing, the court had issued notice limited to the award of
Rs. 5 lacs as compensation to the parents of the child even
though the insurance company has raised the question of its
liability to pay the compensation in question.

A Complaint Petition was filed by minor Harjot
Ahluwalia through his parents Mrs. Harpreet Ahluwalia and
Mr. Kamaljit Singh Ahluwalia before the Commission alleging
that the minor was being treated at a Nursing Home in Noida
in December, 1993. As there was no improvement in his health
the said minor was brought to M/s. Spring Meadows Hospital,
appellant in Civil Appeal No. 7708 of 1997 on 24th of
December, 1993. In the hospital the patient was examined by
the Senior Consultant Paediatrician, dr. Promila Bhutani and
on the advice of the said doctor the patient was admitted as
an in-patient in the hospital. The doctor made the diagnosis
that the patient was suffering from typhoid and intimated
the parents that medicines have been prescribed for the
treatment of the typhoid fever. On the 30th of December,
1993 at 9.00 a.m. Miss Bina Matthew, nurse of the hospital
asked the father of the minor patient to get the injection -
In Lariago - to be administered intravenously to the minor
patient. The father of the minor child purchased the
medicine which was written down by the nurse and gave it,
whereupon the nurse injected the same to the minor patient.
The patient, immediately on being injected collapsed while
still in the lap of his mother. it was further alleged that
before administering the injection the nurse had not made
any sensitive test to find out whether there would be any
adverse reaction on the patient. Seeing the minor child
collapse the parents immediately called for help and the
Resident Doctor Dr. Dhananjay attended the patient. Said Dr.
Dhananjay told the parents that the child had suffered a
cardiac arrest and then by manually pumping the chest the
Doctor attempted to revive the heartbeat. The hospital
authorities then summoned an Anaesthetist, Dr. Anil Mehta
who arrived within half an hour and then started a procedure
of manual respiration by applying the oxygen cylinder and
manual Respirator. In the meantime Dr. Promila Bhutani also
reached the hospital and the minor child was kept on a
device called manual Respirator. Though the child was kept
alive on the manual ventilator but the condition of the
child did not show any improvement. In course of treatment
as the minor's platelets count fell, a blood transfusion was
given but still no improvement could be seen. Dr. mehta,
therefore, intimated the parents that the hospital does not
have the necessary facilities to manage the minor child and
the should be shifted to an intensive Care Unit equipped
with an Auto Respirator. On the advice of Dr. Mehta the
parents brought the child and admitted him in the Paediatric
Intensive Care Unit of the All India Institute of Medical
Science on the 3rd January, 1994. In the Institute the
doctors examined the minor child thoroughly and informed the
parents that the child is critical and even if the would
survive, he would live only in a vegetative state as
irreparable damage had been caused to his brain and there
was no chance of revival of the damaged p[arts. The minor
was then kept in the Paediatric Intensive Care Unit of the
AIIMS till 24th of January, 1994 and was thereafter
discharged after informing the parents that no useful
purpose would be served by keeping the minor child there.
Dr. Anil Mehta as well as Dr. Naresh Juneja, Chief
Administrator of Spring Meadows Hospital, however, offered
to admit the minor child at their hospital and to do
whatever was possible to stabilise the condition of the
child and accordingly the minor child was again admitted to
the hospital. The complainant alleged that the child on
account of negligence and deficiency on the part of the
hospital authorities suffered irreparable damages and could
survive only as a mere vegetative and accordingly claimed
compensation to the tune of Rs. 28 lacs.

On behalf of the appellants objection was filed before
the commission taking the stand that no payment having been
made it cannot be said that the services of the hospital
having been availed for consideration and as such the
complainant is not a consumer within the definition of
'Consumer' in the Consumer Protection Act, 1986. It was
further stated that there has been no deficiency or
negligence in service on the part of the doctors of the
hospital and the negligence, if any, is on the part of the
nurse who misread the prescription. It was also contended
that immediate steps have been taken by Dr. Dhananjay as
Well as dr. Mehta and the hospital authorities had summoned
three specialists to examine the patient. It was further
stated that the patient was taken to the All India Institute
of Medical Sciences by the parents for better treatment but
on being discharged from the Institute the hospital
authorities on sympathetic consideration readmitted the
child and are taking all possible steps and giving all
possible treatment without any payment and at no point of
time there has been any negligence on the part of the
doctors attending the minor child in the hospital. It was
also urged that in any event the liability to pay
compensation would be that of the insurer.

Miss Bina Matthew the nurse who injected the Lariago
injection to the child, who was opposite party No.2 before
the Commission field her objections station therein that she
is a qualified nurse and had exercised all diligence and
care in discharging her duties. It was further stated that
the patient was under the treatment of Dr. Bhutani who had
the duty to decide the course treatment and as nurse she was
only working under her control and direction. She also
stated that as the patent was already taking lariago syrup
and when the doctor advised that injection should be given
she thought that the same lariago injection to be given and
it was the duty of the duty of the doctor to give the
injection and take all care.

The insurer-opposite no. 3- which is appellant in Civil
Appeal No. 7858 of 1997 contested the claim and took the
defence that there has been no deficiency in service on the
part of the reinsurance company and the provisions of the
Consumer Protection Act could not be invoked against the
insurer. According to the insurer the insurance company
issued medical establishment professional negligence errors
and omissions insurance policy and the terms and conditions
of the policy would indicate that the liability of the
insurer, if any, is to the extent of 12,50,000/- and not
beyond the same and further the insurer cannot be made
liable when the liability in question has arisen on account
of negligence or deliberate non-compliance of any statutory
provisions or intentional disregard o the insured's
administrative management of the need to take all reasonable
steps to prevent the claim. According to the insurer the
nurse Miss Bina Matthew was not a qualified nurse at all
and she was not authorised to take up the employment as a
nurse not having been registered with any Nursing Council of
any State. It was also stated t hat the present state of
affairs of the minor child is on account of negligence of an
unqualified nurse and therefore the insurer cannot be made
liable to pay for any loss or damage sustained. In course of
the proceedings before the Commission to assess the minor's
condition and rehabilitation requirement the Commission
referred the matter to the medical Superintendent,
Safdarjung Hospital by order dated 28th January, 1997, and
in pursuance to such order the said minor was examined and a
report was received by the Commission from the Medical
Superintendent, Safdarjung Hospital, New Delhi. The
Commission also examined witnesses including Dr. J.S. Nanra
and Dr. A.S. Ahluwalia who testified that on account of a
medicine having been injected the minor suffered from
cardiac arrest on account of which the brain has been
damaged. on the basis of the oral and documentary evidence
on record the Commission came to the conclusion that the
child had suffered from cardiac arrest and cause of such
cardiac arrest was intravenous injection of lariago of high
dose. The Commission also came to the conclusion that there
has been considerable delay in reviving the heart of the
minor child and on account of such delay the brain of the
minor child got damaged. On the question of the negligence
of services the Commission came to the conclusion that there
was a clear dereliction of duty on the part of the nurse who
was not even a qualified nurse and the hospital is
negligent having employed such unqualified people as nurse
and having entrusted a minor child to her care. The
Commission also came to the conclusion that Dr. Dhananjay
was negligent in the performances of his duties inasmuch as
while Dr. Bhutani had advised that the injection should be
given by the doctor but he permitted the nurse to give the
injection. The Commission, ultimately came to the finding
that the minor patient had suffered on account of
negligence, error and omission on the part of nurse as well
as Dr. Dhananjay in rendering their professional services
and both of them were negligent in performing their duties
in consequence of which the minor child suffered and since
the doctor and the nurse were employees of the hospital the
hospital is responsible for the negligence of the employees
and the hospital is liable for the consequences. The
Commission then determined the quantum of compensation and
awarded 12.5 lacs as compensation to the minor patient. In
addition to the aforesaid sum of Rs. 12.5 lacs, the
Commission also awarded Rs. 5 lacs as compensation to be
paid to the parents of the minor child for the acute mental
agony that has been caused to the parents by reason of their
only son having been reduced to a vegetative state requiring
life long care and attention. On the question of the
liability of the reinsurance company the Commission came to
hold that the said insurance company is liable to indemnify
the amount of Rs. 12,37,500/- in terms of the policy on
account of the liability of the hospital as the case is
fully covered under the indemnity clause. The Commission
then considered the question as to how the amount of
compensation should be disbursed for being spent for the
welfare of the child and then issued certain directions with
which we are not concerned in this appeal.

The learned counsel for the appellant appearing for the
hospital contended that the complaint having been filed by
the minor child who was the in-patient in the hospital
through his parents the said minor child can only be the
consumer and the parents cannot claim any compensation under
the Consumer Protection Act for the mental agony they have
suffered and as such the award of compensation to the tune
of Rs. 5 lacs in favour of the parents is beyond the
competence of the Commission. The learned counsel then urged
that under the Consumer Protection Act the consumer to whom
services has been provided can make a complaint and in the
case in hand the services having been provided to the minor
patient, he becomes the consumer and consequently no
compensation can be awarded in favour of the parents of the
consumer and according to the learned counsel it is apparent
from the provisions of Section 12(1)(a) of the Consumer
Protection Act. The learned counsel lastly contended that
under Section 14(1) (d) of the Act the Commission would be
entitled to pay such amount as compensation to the consumer
for any loss or damage suffered by such consumer and in the
case in hand the minor child being the consumer the
Commission was not competent to award compensation to the
parents for the mental agony they have suffered. The learned
counsel for the insurer - appellant in the other appeal
vehemently contended that insurer cannot be held liable to
indemnify the hospital who is the insured as the said
hospital had employed unqualified people to treat the
patients and the direction of the Commission that the
insurer would indemnify the insured is unsustainable in law.
But we are not in a position to examine this contention
advanced on behalf of the learned counsel appearing for the
insurer in view of the limited notice issued by this Court.
It would not be open for us to entertain this question for
consideration as the notice issued by this Court indicates
that only the award of compensation to the parents of the
minor child and the legality of the same can only the
considered. We are, therefore, unable to examine the
contention raised by the learned counsel appearing for the
insurer.

In view of the submissions made by the learned counsel
appearing for the hospital the following questions arise for
our consideration:

1. The minor child being the patient who was admitted into
the hospital for treatment can the parents of the child
be held to be consumers so as to claim compensation
under the provisions of the Consumer Protection Act?

2. Is the commission under the Act entitled to award
compensation to the parents for mental agony in view of
the powers of the commission under Section 14 of the
Act?

3. Even if the child as well as the parents of the child
would come under definition of the 'consumer' under
Section 2(1) (d) of the Act whether compensation can be
awarded in favour of both the consumers or compensation
can be awarded only to the beneficiary of the services
rendered, who in the present case would be child who
was admitted into the hospital?

Before we examine the aforesaid questions it would be
appropriate to notice the scenario in which the parliament
enacted the Consumer Protection Act (hereinafter referred to
as 'the Act'). The United Nations had passed a resolution in
April, 1985 indicating certain guidelines under which the
Government could make law for better protection of the
interest of the consumers. Such laws were necessary more in
the developing countries to protect the consumers from
hazards to their health and safety and make them available
speedier and cheaper redress. Consumerism has been a
movement in which the trader and the consumer find each
other as adversaries. Till last two decades in many
developed and developing countries powerful consumer
organisations have come into existence and such
organisations have instrumental in dealing with the consumer
protection laws and in expansion of the horizon of such
laws. In our country the legislation is of recent origin and
its efficacy has not been critically evaluated which has to
be done on the basis of experience. Undoubtedly the Act
creates a framework for speedy disposal of consumer disputes
and an attempt has been made to remove the existing evils of
the ordinary court system. The Act gives a comprehensive
definition of consumer who is the principal beneficiary of
the legislation but at the same time in view of the
comprehensive definition of the term 'consumer' even a
member of the family cannot be denied the status of consumer
under the Act and in an action by any such member of the
family for any deficiency of service, it will not be open
for a trader to take a stand that there is no privity of
contract. The Consumer Protection Act confers jurisdiction
on the Commission in respect of matters where either there
is defect in goods or there is deficiency in service or
there has been an unfair and restrictive trade practice or
in the matter of charging of excessive price. The Act being
a beneficial legislation intended to confer some speedier
remedy on a consumer from being exploited by unscrupulous
traders, the provisions thereof should receive a liberal
construction.

In the case in hand we are dealing with a problem which
centres round the medical ethics and as such it may be
appropriate to notice the broad responsibilities of such
organisations who in the garb of doing service to the
humanity have continued commercial activities and have been
mercilessly extracting money from helpless patients and
their family members and yet do not provide the necessary
services. The influence exhorted by a doctor is unique. The
relationship between the doctor and the patient is not
always equally balanced. The attitude of a patient is poised
between trust in the learning of another and the general
distress of one who is in a state of uncertainty and such
ambivalence naturally leads t a sense of inferiority and it
is, therefore, the function medical ethics to ensure that
the superiority of the doctor is not abused in any manner.
It is a great mistake to think that doctors and hospitals
are easy targets for the dissatisfied patient. it is indeed
very difficult to raise an action of negligence. Not only
there are practical difficulties in linking the injury
sustained with the medical treatment but also it is still
more difficult to establish the standard of care in medical
negligence of which a complaint can be made. All these
factors together with the sheer expense of bringing a legal
action and the denial of legal aid to all but the poorest
operate to limit medical litigation in this country. With
the emergence of the Consumer Protection Act no doubt in
some cases patients have been able to establish the
negligence of the doctors rendering service an din taking
compensation thereof but the same is very few in number. In
recent days there has been increasing pressure on hospital
facilities, falling standard of professional competence and
in addition to all, the ever increasing complexity of
therapeutic and diagnostic methods and all this together are
responsible for the medical negligence. That apart there has
been a growing awareness in the public mind to bring the
negligence of such professional doctors to light. Very often
in a claim for compensation arising out of medical
negligence a plea is taken that it is a case of bona fide
mistake which under certain circumstances may be excusable,
but a mistake which would tantamount to negligence cannot be
pardoned. In the former case a court can accept that
ordinary human fallibility precludes the liability while in
the latter the conduct of the defendant is considered to
have gone beyond the bounds of what is expected of the
reasonably skill of a competent doctor. In the case of
Whitehouse v Jordan and another, [1981] 1 ALL ER 267, an
obstetrician had pulled too hard in a trial of forceps
delivery and had thereby caused the plaintiff's head to
become wedged with consequent asphyxia and brain damage. The
trial judge had held the action of the defendant to be
negligent but this judgment had been reversed by Lord
Denning, in the Court of Appeal, emphasising that an error
of judgment would not tantamount to negligence. When the
said matter came before the House of Lords, the views of
Lord Denning on the error of judgment was rejected and it
was held that an error of judgment could be negligence if it
is an error which would not have been made by a reasonably
competent professional man acting with ordinary care. Lord
Fraser pointed out thus;

"The true position is that an error
of judgment may, or may not, be
negligent; it depends on the nature
of the error. If it is one that
would not have been made by a
reasonably competent professional
man profession to have the standard
and type of skill that the
defendant holds himself out as
having, and acting with ordinary
care, then it is negligence. If, on
the other hand, it is an error that
such a man, acting with ordinary
care, might have made, then it is
not negligence."

Gross medical mistake will always result in a finding
of negligence. Use of wrong drug or wrong gas during the
course of anaesthetic will frequently lead to the imposition
of liability and in some situations even the principle of
Res ipsa loquitur can be applied. Even delegation of
responsibility to another may amount to negligence in
certain circumstances. A consultant could be negligent where
he delegates the responsibility to his junior with the
knowledge that the junior was incapable of performing of his
duties properly. We are indicating these principles since in
the case in hand certain arguments had been advanced in this
regard, which will be dealt with while answering the
question posed by us.

Question Nos. 1 and 3 are inter-linked, and therefore,
they are discussed together. The answer to both these
questions would depend upon an interpretation of the
expression 'consumer' in Section 2(1)(d) of the Act. Section
2(1)(d) is extracted hereinbelow in extenso:

2(1)(d) : " Consumer" means any
person who -

(i) buys any goods for a
consideration which has been
paid or promised or partly
paid an partly promised, or
under any system of deferred
payment and includes any user
of such goods other than the
person who buys such goods for
consideration paid or promised
or partly paid or partly
promised, or under any system
of deferred payment when such
use is made with the approval
of such person, but does not
include a person who obtains
such goods for resale or for
any commercial purpose; or

(ii) hires or avails of any
services of ra consideration
which has been paid or
promised or partly paid and
paid or promised or partly
paid and partly promised, or
under any system of deferred
payment and includes any
beneficiary of such services
other than the person who
hires or avails of the
services for consideration
paid or promised, or partly
paid and partly promised, or
under any system of deferred
payment, when such services
are availed or with the
approval of the first
mentioned person;

Explanation - For the purpose
of sub-clause (i) "commercial
purpose " does not include use by a
consumer of goods bought and used
by him exclusively for the purpose
of earning his livelihood, by means
of self-employment.

In the present case, we are concerned with clause (ii)
of Section 2(1)(d). In the said clause a consumer would mean
a person who hires or avails of the services and includes
any beneficiary of such services other than the person who
hires or avails of the services. When a young child is taken
to a hospital by his parents and the child is treated by the
doctor, the parents would come within the definition of
consumer having hired the services and the young child would
also become a consumer under the inclusive definition being
a beneficiary of such services. The definition clause being
wide enough to include not only the person who hires the
services but also the beneficiary of such services which
beneficiary is other than the person who hires the services,
the conclusion is irresistible that both the parents of the
child as well as the child would be consumer within the
meaning of Section 2(1)(d)(ii) of the Act and as such can
claim compensation under the Act.

So far as the second question is concerned, the
contention of the learned counsel for the appellant is that
Section 14 being the provision authorising the Commission to
pass appropriate orders under one or more of the clauses (a)
to (i) and clause (d) alone being the provision for award of
compensation, the Commission is entitled to award
compensation, the Commission is entitled to award
compensation for any loss or injury suffered by the consumer
due to the negligence of the person whose services had been
hired and that being the position it would be open for the
Commission to award compensation to the minor child who has
suffered injury and not the parents. In other words, the
learned counsel urged that clause (d) of Section 14 may not
be interpreted enabling the Commission to award compensation
both to the minor child and his parents. We see absolutely
no force in the aforesaid contention inasmuch as the
Commission would be entitled to award compensation under
clause (d) to a consumer for any loss or injury suffered by
such consumer due to the negligence of the opposite party.
If the parents of the child having hired the services of the
hospital are consumer within the meaning of Section
2(1)(d)(ii) and the child also is consumer being a
beneficiary of such services hired by his parents in the
inclusive definition in Section 2(1)(d) of the Act, the
Commission will be fully justified in awarding compensation
to both of them for the injury each one of them has
sustained. In the case in hand the Commission has awarded
compensation in favour of the minor child taking into
account the cost of equipments and the recurring expenses
that would be necessary for the said minor child who is
merely having a vegetative life. Te compensation awarded in
favour of the parents of the minor child is for their acute
mental agony and the life long care and attention which the
parents would have to bestow on the minor child. The award
of compensation in respect of respective consumers are on
different head. We see no infirmity with the order of the
Commission awarding different amount of compensation on
different head, both being consumers under the Act.
Accordingly, the Commission in our considered opinion
rightly awarded compensation in favour of t he parents in
addition to the compensation in favour of the parents in
addition to the compensation in favour of the minor child.

The learned counsel for the appellants in course of his
argument has contended that not only the hospital
authorities had immediately on their own taken the
assistance of several specialists to treat the child but
also even after the child was discharged from the All India
Institute of Medical Sciences, humanitarian approach has
been taken by the hospital authorities and child has been
taken care of by the hospital even without charging any
money for the services rendered and consequently in such a
situation the award of damages for mental agony to the
parents is wholly unjustified. We, however, fail to
appreciate this argument advanced on behalf of the learned
counsel for the appellants inasmuch as the mental agony of
the parent will not be dismissed in any manner merely seeing
the only child living a vegetative state on account of
negligence of the hospital authorities on a hospital bed.
The agony of the parents would remain so long as they remain
alive and the so-called humanitarian approach of the
hospital authorities in no way can be considered to be a
factor in denying the compensation for mental agony suffered
by the parents.

In the premises as aforesaid, the contentions raised by
the learned counsel appearing for the appellants having
failed, the appal fails and is dismissed.